INSTITUTION OF JUSTICE
SHARES IN INHERITED PROPERTY
(9-104 to 126)
In the normative pattern of the family, the family estate could be divided among the brothers only after the demise of both of their parents, the father and the mother. All the brothers should be present and the property should be divided equally among them. (9-104)
Monogamy was the norm and there would be no additional share for the eldest of the brothers. The law of primogeniture was not applicable and the mantle did not fall on the shoulders of the eldest son. The brothers and sisters or other cousins of the father or of the grandfather had no claim to any portion of the property of this nuclear family headed by the parents of these brothers. The daughters and their sons and daughters too had no claim to any share in the estate of this nuclear family.
Suffragists and their sympathizers have protested against this discrimination against daughters. Were the editors of Manusmrti prejudiced against women?Jha notes that the comments of Medhatithi on this and the subsequent two verses are not available. Was this not the picture of the normative nuclear family when the Manava Dharmasastra was first drafted? [The amendments introduced to this rule by the later Smrtis may not be given respect.]All the brothers had equal rights irrespective of whether they were adults or not.
The first editors of this socio-cultural code appear to have preferred partition of the consolidated property held by the parents jointly, to other methods of administering it as a consolidated indivisible asset.Some suggested that if all the brothers buried their rivalries they could consent to such joint or oligarchic administration with the eldest son heading it. The rest would live under him as under their father. He would be taking charge of the ancestral house and all the wealth (liquid assets). (9-105)
Some might have suggested that the latter could be divided equally among the brothers but that the brothers should own the house jointly, as it was not practicable to partition it. This proposal appears to have been shot down and the assembled brothers were required to consider the two alternatives, equal division of the entire property or joint ownership of the entire property (both fixed assets and liquid assets) headed by the eldest son as the trustee and administrator (karta).
The first alternative would witness the end of the first nuclear family with the death of both the parents and the second would keep the myth of the joint family, a cumbersome and fractious domestic leviathan, alive. In either case, authority did not pass on to the next generation till the demise of both the parents. But there were objections raised to declaring the eldest son as the administrator of the jointly inherited estate.
The editors of Manusmrti fall back on the views expressed by the Manavas, the followers of Pracetas Manu, the author of an Arthasastra, politico-economic code, and a member of the Board of Ten Prajapatis (chiefs of peoples) that drafted the original Dharmasastra. According to the member of the Manava school of thought, one became the father of a son (putree) with the birth of his eldest son. A sonless person was not eligible to hold any property. It was not adequate that he had daughters.
Only that son made his father free from debts (anrna), that is, enabled his father to discharge his social debts to his ancestors, nobles and sages (pitrs, devas and rshis) by taking on his shoulders the duties left incomplete by his father. On the birth of the first son, the father became eligible to exercise all the rights that were kept in abeyance. (9-106)
Hence the eldest son took over the administration of all the assets left behind by the father and the discharge of all his duties, social, cultural, economic and civic. The use of the term, manava, is significant. All men who opted for Arthasastra of Pracetas Manu in preference to the earlier codes of clans and communities or regions had to follow the law of primogeniture, the additional rights and duties devolving on the eldest son.The editors of Manusmrti do not agree with it.
They say: That son alone to whom he transfers his debt and through whom he obtains endlessness (anantya) is known as one born for (the fulfillment of) socio-religious duty (dharmaja) while others are known as born of lust (kamaja). (9-107) Jha advises that this statement be not taken literally as else the other sons would otherwise never be entitled to property.
The riders to the above verse are obviously later additions.The eldest brother was directed to support his younger brothers just as the father supported his sons. The younger brother too should behave towards the eldest like a son. This social law (dharma) follows the above dictum. (9-108) The progress and ruin of the clan (kula) depend on the eldest son. Hence good men in the community, social world (loka) of commoners honour him and never ill-treat him. (9-109)
If the eldest brother behaves like an ideal elder brother, he would be respected as equal to the parents, to mother and father. If not, he would be treated as but a kinsman (bandhu). He was expected to be solicitous of the welfare of his younger brothers and not be only authoritarian in his treatment of them. Of course they should never treat him as an enemy. (9-110)
The joint family with the eldest brother as thekarta, trustee and administrator often witnessed reservations about his approach. If it did not collapse it was because the younger brothers did not treat him as their enemy.The joint family survived as an institution based on the concept of brotherhood despite the big brother approach of the eldest brother as its karta. For, though he was domineering he was not exploitative. The editors of Manusmrti agree that it would be in tune with socio-religious laws (dharma) and even meritorious for the brothers to reside separately. Of course they do not discourage their living together even after the death of their parents. Such decision had to be motivated by socio-religious intent rather than by divergent economic aspirations. This note is implicit.
These editors must have witnessed partition of ancestral property caused by these aspirations and attendant mutual recriminations among the brothers. These were to be avoided and the brothers had to adopt a positive approach to this issue. Every one of the brothers would cherish the memory of his parents, though separately, and continue the tradition of the clan. Constitution of new small nuclear families after the death of the parents was not to be viewed as revolt against the authority of the elder brother. (9-111) This verse had a wider implication than requiring every one of the brothers to perform the annual shraddha rites to their parents and their ancestors. It repudiated the concept of the law of primogeniture, which was essentially a politico-economic one.
The norm set by the editors of Manusmrti however did not find support among the scholars who drafted the politico-economic codes. They would opt for greater authority and larger share for the eldest brother if the concept of equal shares in division of property was not agreed to by all the brothers. As every brother wanted a larger share than what his younger brother got, it was a virtual struggle where might ruled the roost. Some of the editors of Manusmrti found that while most of the liquid assets could be divided equally, the chattels could not be divided so. The best of them was claimed by the eldest brother and the second best by the next one while the youngest was left with the smallest of the chattels left behind by their parents. The liquid assets and even the fields and cattle could however be held jointly after determining the proportional shares and the eldest brother was asked to administer them.
The brothers stayed separately and pursued their socio-economic duties separately though the eldest brother was recognized as the administrator of this joint property.While apportioning the rights over the liquid assets and fields and cattle, the eldest brother got five percent of the total wealth as his special share, the next one half of that and the last two got each half of what the second got. The rest, ninety percent of the property, was then divided equally among all the four brothers. This compromise left the youngest poor.(9-112) But those brothers who were neither the eldest with special civic and civil duties on behalf of the joint family or the youngest protested against this suggestion.
Some recommended that there be only three grades for special shares, large, middle and small with the largest and the best taken by the eldest and the smallest and the worst going to the youngest and the others to the middle ones. This was unjust (adharma) but the legislators could not be dogmatic and inflexible. They were lax and yielded to the might of the eldest. Legislation began with noble intentions to ensure just and equal distribution of the family property among all the brothers but surrendered to might and greed, allowing the concept of equality before law to slide into first nominal equitable distribution and then to patent inequity in practice. If it was so within the family and among brothers it could not be expected to fare better in matters pertaining to the larger society. Blood was thinner than water. (9-113,114)
The editors of Manusmrti would not yield to inequity and insisted on equal distribution if all the brothers were equally efficient in work.The ten per cent share that was to be distributed on the basis of seniority after distributing the ninety-percent equally among the eldest, middle and youngest, too would be distributed equally.Seniority should not submerge equality in merit. Of course, a small amount may be given extra to the eldest as a token of respect.(9-115)
The additional share honouring comparative seniority was to be first allotted and then the rest distributed. If no additional share had been assigned first at the time of partition, the eldest would get twice what the youngest got and the middle brother would get one and a half of what the youngest got. The proportion was 4:3:2. This was obviously more tilted against the youngest than the one mentioned earlier. (9-116,117) In the light of this practice then in vogue, the insistence of the legislators who stood by Manusmrti on equality must have been found unacceptable to the eldest sons. The law of primogeniture was an aberration that sanctified iniquity.
Daughters did not have any share in the property held and administered by their parents. Only the sons could divide it among themselves and they were advised to divide it equally among themselves irrespective of seniority in age and ability. Married daughters had received their shares at the time of marriage and were not eligible for any share at the time of partition of this property. But unmarried daughters had to be provided for. If the property was not divided, their marriage became the joint responsibility of these sons who were headed by the eldest among them as the karta, administrator.As these brothers got separated, this responsibility too was divided and each of them was to look after the interests of one of the unmarried sisters assigned to him.
Every brother had to give one fourth of his share for the maintenance and marriage of the sister placed in his charge. Those brothers who were not inclined to provide for this stood expelled (patita) from the family, clan and community. The brothers could not ignore the needs and interests of their sisters though the latter did not get shares on par with their brothers. (9-118)
It appears that Jha had followed Medhatithi and introduced the element of jati in making a brother responsible for the maintenance of a sister of his own caste. He was presuming a situation where the father had wives of different castes. This factor is an unwarranted interpolation. This verse has been interpreted in a mean manner by many leading to a gross exploitation of the unmarried daughters left behind by their parents as orphans. One fourth was better than nothing, the legislators consoled them. The later commentators have not been that solicitous even. Nothing short of equal rights for brothers and sisters could save them from being thrown to the wolves. But it would have endangered their lives for the elder brothers discriminated against even the younger brothers. It was a world of iniquity where lust for wealth silenced affection and ethics.
The arguments advanced by the commentators in defence of the brothers who neglected the interests of their sisters are sickening. The legislators, who drafted the social constitution, Manusmrti, had no coercive power though they extended a threat of social ostracism of the delinquent and recalcitrant brothers. They would subtly pass on the duty of protecting the odd sister who was not cared for to the eldest brother. He was to maintain the odd animal that did not fall to the share of any of the brothers. (9-119)
Monogamy was the norm but niyoga too was practised among several sections with the intent to retain the property in the same nuclear family and not to allow it to be taken over by other kinsmen (dayada). If the eldest brother died intestate, his property could be taken over by his younger brothers but his widow would remain unguarded as she had no sons and could not handle his property independently. She needed a guardian and was directed by her husband to beget a son for him by intercourse with his younger brother.
Unless this requisition was made in public she could not have intercourse with that brother-in-law. On the death of the elder brother and his wife, their son born by such niyoga would be eligible to only half of the property left behind by that elder brother and his wife. The other half would be taken over by the younger brother whose seed was cast in her womb. This was the social law ordained by Dharmasastra. (9-120)
The politico-economic code of those times had not agreed to it. Whatever share the elder brother had in the property held jointly by him and his brothers would be divided equally between this son and his procreator. The other brothers would have no share in it. This realization must have led to objections to the practice of niyoga and not ethical considerations.
But if one had a natural son (atmaja or aurasa) by his wife and also a son born of niyoga the two could not be treated as equal. If that mans property were divided equally between the two the procreator of the latter son (kshetraja) would not benefit. The deputy could not be treated as equal to the main official according to social laws. Hence while the natural son would get half of his fathers property, the kshetraja would get only one fourth with the remaining one-fourth being given to the procreator of that kshetraja son. Burnell was imprecise when he translated this verse as: The subordinate does not according to law, take the place of the original (in respect to his legal rights); the principal (becomes) a father by this procreating; one should therefore have this (son) share (with his uncle), in accordance with the law of right. (9-121)
This rule has been subjected to diverse interpretations. It would appear that on the death of a man who had permitted his wife to resort to niyoga with his younger brother, the widow became the administrator of his property. She might have had a son by her husband and another by her brother-in-law. The two sons could not be treated on par. The one-fourth of the property of her husband that was assigned to her brother-in-law would be shared equally by the natural sons of the latter. The kshetraja son had no claim to any share in the property of his procreator. Some puritans tended to deny the kshetraja son any share in the property of the person for whom he was procreated. The occasions when one sought a kshetraja son when he already had a natural son must have been very few.
Many insisted that the eldest son who would take charge of the administration of the property of the joint family should be a natural son, aurasa and not a surrogate, kshetraja. They suggested that the concept of new nuclear families emerging on the demise of the father and the mother be reconsidered to avoid resorting to the provisions of niyoga. The brother-in-law was not to be allowed to take charge of the property by taking advantage of niyoga. Some preferred to legalize polygamy rather than permit niyoga. Supersession of a wife, on grounds of infertility or sonlessness, was valid.The husband might marry another woman and procreate a son on her. He might later beget a son on his first wife. Of the two sons who would be senior had to be determined. Supersession became infructuous with the birth of the son. Supersession of a wife did not imply that she had lost the right and duty to have sex with her husband. Only her status as an associate head of the nuclear family was set aside.
The first wife was to be restored to her status as the additional head of the nuclear family and handed over the administration of the property and finances of the household. Her son would be treated as senior to the son of the second wife though younger in age. If the property were not to be physically divided, he would receive one bull as the preferential share as the new administrator. The bull signified that he was in command of the new joint family on the demise of his father. The other sons born to the other wives of his father would be required to obey him though he was not the eldest of the brothers. (9-122,123) Seniority of the sons was determined by the seniority of the mothers and not by their own age or even by merit.
The cows were distributed among the other sons while the bull, which was used to breed calves on these cows was assigned to the son who was recognized as the eldest and head of the new joint family. The son who was bypassed was compensated. He was allotted fifteen cows and a bull while the other sons might get proportionate shares according to the seniority of their mothers. (9-124) It is obvious that the editors were referring to the practice prevalent in the pastoral communities. The son who was the eldest by age was exempted from living under the tutelage of his junior and was permitted to establish a ranch of his own while the other sons were required to accept the eldest son of the eldest wife as their chief.
This was a situation when the father had died and the mothers were yet alive when the eldest son was nominated to head the new joint family. This practice permitted the unhappy eldest son whose mother was not the senior among the wives to leave the joint family and establish his own home and in the case of royal families, his own lineage. It weakened the joint family but reduced grievances. The issue of seniority of wives arose only when their husband did not marry them at the same time. Though they might have not all been of the same age they had gained equality of status by such simultaneous marriage. In such a case the seniority among the sons was determined only by seniority in age among them. (9-125) It is not proper to introduce here the condition that the wives should belong to the same community (jati) for their being treated as equals.
The legislators who drafted Manusmrti were confronted with diverse practices on this issue. It appears that they opted to follow the views of Subrahmanya, the socio-political counsellor of Sakra Indra and the founder of the Indra school of political thought that was recorded as Bahudantakam (the work of an Indra who was known as the son of Bahudanti). [It may be noted here that this Indrawas a counsellor of Mamdhata, the veteran of the solar dynasty and a champion of Kshatriya aristocracy. Both Kautilya and Bhishma had great respect for him.]
Subrahmanya was required to explain how to determine seniority, by the time of conception or by the time of delivery. While the former appeared to be more accurate, it was not easy to determine which of the twins was conceived earlier. In such cases, it was advisable to go by the time of delivery, he suggested. There must have been occasions that warranted definitive stands on this issue as the conflicting claims led to violent struggles for possession of thrones and lands. The editors of Manusmrti would prefer to go by the obvious rather than by the not so obvious factor of conception. (9-126)
Son of the Appointed Daughter as a Heir
(127 to 144)
Bhrgu and other social legislators held as inadmissible, niyoga by which the impotent husband called upon his wife to beget a son for him by intercourse with his brother. Man and woman are not to be likened to bull and cow and the rules applicable to breeding animals are not to be imported to the institution of marriage, a feature particular to civilized human society. The chastity of the wife was not to be compromised nor that of any other woman. But pragmatism called for other alternatives to meet the socio-economic needs of the family.
It was not to be allowed to wither away for want of a male heir who would continue its traditions by performing the last rites of the deceased male head and the annual sraddha rite for him to perpetuate his memory and continue to pay his debts to his ancestors and to the society.One of the alternatives was to request the daughter to beget a son by her husband and hand him over to her father as his son. This practice of appointed daughter was prevalent among the Gandharvas of the Vedic times. Many Gandharvas parted company with their consorts after they became pregnant and did not stay back to set up homes. They were adventurous and nomadic by temperament. Sages and nobles brought up their offspring as orphans.
The Gandharvas saw the replica of their wives in their daughters but not all made bold to have sex with their daughters. Incest might have occurred when the fathers failed to identify the girls as their daughters. The sons born of appointed daughters stood suspected as having been born of incest. In the new society where men and women lived in homes as husbands and wives bound by the vow of monogamy and chastity, such conscious or unconscious incest was averted. The daughter could be appointed to beget a son for her father by her husband. It would however not be her eldest son. For the latter had to continue the tradition and lineage of his procreator.
The appointment had to be made by public pronouncement and in accordance with the rules of procedure (vidhi) laid down in the codes. The purpose had to be specified as performance of funeral rites of the father of the mother. (9-127) It is implied that the intent should be fulfillment of socio-religious (dharma) requirements and not acquisition of an heir who would look after his parents in old age in expectation of succeeding to their property. Manusmrti justifies the practice of having appointed daughter to ensure the continuance of ones lineage by citing Prajapati Daksha as the one who set this precedent. (9-128)
This verse might have been a later interpolation but an attempt to defend the steps taken by Prajapati Daksha against his daughter who had married Siva. This Prajapati (chief of the people) was embroiled in several controversies. He had several daughters and no son. Ten of his daughters 'married' Dharma, an official who was later elected as the first Manu, Svayambhuva, by his peers.
The ten sages who were appointed to draft the Manava Dharmasastra were nominated by this Prajapati as his successors. Legends claimed that Kashyapa had married thirteen of Dakshas daughters. Most legends state that Kashyapa married Aditi, Diti and Danu, three daughters of Daksha. Kashyapa asserted that only Aditi was his wife and that all the eight groups of the larger society were his descendants by Aditi. (Vide Chapter 3 of my earlier dissertation, Evolution of the Social polity of Ancient India.) The twenty-seven stars that were married to King Soma were stated to be the daughters of Daksha. (9-129) This verse too is a later interpolation and may be dropped.
These imageries were intended to defend Daksha and project him as a liberal chieftain while many criticized him as an arrogant and merciless chieftain. Daksha was a disciplinarian who claimed that the daughter was on par with the son and that her son was equal to that of the sons son. The lineage might be continued through the daughter also. She was not to be denied a share in her fathers property. No one can take away the property of a man if he has a daughter on the ground that he has no son. (9-130)
This must have been the stand of Bhrgu and the other sages who edited Manava Dharmasastra. Daksha did not support the claim that only sons could inherit property. Bhrgu (a supporter of Daksha) was the chief editor of Manava Dharmasastra. The editors of Manusmrti cite the example and stand of Daksha to legitimize the practice of appointing a daughter to beget by her husband a male heir to her fathers property. This practice was valid if that daughter was her fathers natural child and not an adopted one or one born by niyoga.
The correct status of the daughter had to be explained.According to Manusmrti, the wife and the husband were joint heads of the nuclear family. On the demise of the husband, their eldest son took his status. If they had no son, the widow took over the administration of their property and on her death, her unmarried daughter became eligible to take possession of it. But it could not be handed over to her husband who had no genetic relation with the clan of his father-in-law. But this daughters son, who had genetic relation with it, though not as much as the sons son, could step in to take possession of the property of his mothers parents. He was eligible to take the entire property and need not share it with the brothers of his father. For this, the daughter must have been appointed to beget a male heir for her father. This must have been a condition incorporated in the agreement with the groom before her marriage to him.
The daughters already married could not be bound to this condition. Often widows put down this condition.The daughters son would then take over the mantle of his grandfather and protect his widowed and sonless grandmother. The daughters father could lay such a condition if she was got married even when he was yet alive. (9-131)
[The term, yautaka, is interpreted here as the property specified as to be taken over by the person nominated. Unless the girl had been appointed to beget a son for her father and the property had been separately set aside for that heir, it would be impossible to get the desire and need of the deceased father fulfilled. The daughter could not claim it for her son unless these conditions were met. Yautaka does not imply stridana which could be claimed by all daughters, married or not.]
The above verse has remained a controversial one as it struck at the very root of the dayada system of claims to the property of the deceased. The next verse (9-132) minces no words when it declares that the daughters son should inherit the entire property of the sonless father. It was a reference to the son of the appointed daughter. Even the only son of that daughter could be required to take over the liabilities and assets of her father without being deprived of the right to succeed to the wealth of his father. He should perform the rites of offering pindas, rice-balls, to his mothers father and to his own father in token of this responsibility. He would maintain his widowed mother and also her widowed mother. Neither the brothers of the deceased father of the appointed daughter nor their sons including his kshetraja son would have any claim to any portion of his property.
Some commentators claimed that even his natural son, aurasa, born after the birth of the appointed daughters son was not eligible to get any share in his property. This presumption is unwarranted. In most cases, it was the widow who nominated her unmarried daughter to bear a son for her deceased father or the father nominated her in his deathbed. The arguments advanced to circumvent the basic objective are to be set aside, the editors of Manusmrti seem to declare. They point out that the father of the sons son and the mother of the daughters son were both born of the body of the same grandfather whose property they would be inheriting (9-133). It implies that the daughter and the son, were natural children and that they were not adopted children nor were born by niyoga (by physical contact of their mother with some one other than her wedded husband.).
But if a natural son was born to the person who had nominated his daughter to bear a son for him, after such nomination, irrespective of whether the natural son was born earlier than the son of the appointed daughter or not, both would have equal shares in his property. The appointment once made could not be retracted. (9-134)
If that appointed daughter happen to die without a son, her husband could take over that property placed in her charge to be handed over to her son. There need be no hesitation in taking such a step. For, he knew the appointment and he had consented to it while marrying her. That daughter too had attained the age of consent and was a maiden (kumari) and not a child. None could object to such a son-in-law taking over the property of his sonless father-in-law who by appointing her had excluded all other claimants from annexing it. This was a public pronouncement. (9-135)
This rule has met with serious objections for the son-in-law had genetically nothing in common with his father-in-law. The kinsmen, dayadas would not like an outsider to grab what they claimed as theirs. The commentators have refused to treat the son-in-law as equivalent to the son. Some of them have also suggested that the son of the appointed daughter might not have been born to her after marriage and might have been adopted by her grandfather to protect her from scandals. Such interpretation is ungenerous.
The practice of the girls father stipulating that the son or daughter born to him by the youth courting her and taking her away was prevalent among the Gandharvas of the Vedic period who had not yet been tuned to the system of formal monogamous marriages and nuclear households functioning under patriarchal system. Medieval commentators who had lost sight of the Vedic social system and had opted for the system of joint families and dayada oligarchies could not appreciate it. This practice is not to be treated as approving or concealing pre-marital relations.
The kinsmen often disputed the correctness of the claim that the daughter had been duly appointed to bear a son for her deceased father and refused to part with his share in the joint property to that grandson. The editors of Manusmrti hence declare that it was not necessary that such appointment should have been effected in accordance with the procedure. There might have been oversights. But the principle that a sons son is equal to a daughters son stands and the condition that the latter should perform sraddha rites for his father also if he is the only son of the latter also stands.
Hence it is not to be insisted that the procedure of appointment must have been gone through in all its aspects. However, the daughter must have married a man of equal status, that is, of the same community and class. It was a Gandharva marriage as she was a kumari and had reached the age of consent (fifteen years) and her parents could not have given her away to any one against her wish. (9-136)
Any son of a daughter could claim the property of his sonless grandfather. But the kinsmen, dayadas, raised objections on flimsy grounds to deny the daughters and their sons any share in the joint property.
Some wondered why a sonless father was treated differently from a father with a son. The later editors of Manusmrti explain that one who has a son is eligible to conquer the social worlds (lokas). A sonless father was not eligible to hold any position of authority. He could not become a ruler or conqueror. If he has a grandson (pautra), he is freed from the cycle of rebirth and attains immortality (ananta) on his death. But his prestige grows and glows like the red sun (bradhna) when that grandson begets a son. This belief has led the people to yearn for sons and making their paternal families permanent. Desire and preference for sons was justified on the basis of this assumption. (9-137)
These later editors said, Because the son delivers his father from the hell (naraka) called put, he has been called putra, deliverer from put, by the self-existent one himself. They claimed that Manu Svayambhuva had given this definition. (9-138) Invoking the name of Svayambhuva to give credence to a claim has to be dealt with caution and not given credence easily. These later editors have also claimed that the sons son and the daughters son are on par as both of them save him in the next world. (9-139)
These verses are obviously interpolations and are not rational. They do not deal with the issue of the right of the son of the appointed daughter to perform the last rites of his maternal grandfather. The later editors were not happy with the permission given to him to conduct himself as the religious and legal heir of the latter. He owed his first loyalty to his mother, and the second to her father and the third to his fathers father. In other words, though he might carry out his mothers commitment and be exempted from living under his father, he could not be treated as having been exempted from his duty to his own fathers father and assigned totally to the clan and lineage of his mothers father. (9-140)
When the gotra system came into force to ensure that inbreeding was avoided, sonless men were advised to adopt as ones son one from his own gotra. The editors were not sure that such a son who was not a son of any of the natural brothers would really have the gene peculiar to these brothers and their father. Besides, the gotra system of tracing ones ancestry was not a sound one. Avoidance of sagotra marriages might help to lessen the chances of giving birth to children with physical and mental handicaps. But sagotra inheritance need not be insisted on. If one has an adopted son (dattrima) endowed with all good traits (guna), he shall inherit his property, even though he may have come from another gotra. (9-141)
But the adopted son was not eligible to continue to use the gotra name of his procreator or claim the property of the latter. Unlike the son of the appointed daughter who too came from another gotra but was eligible to use the names of both the gotras, that of his father and that of his maternal grand-father and inherit the properties of both, the adopted son was cut off from the line of his procreator. The adopted son cannot perform the annual remembrance, sraddha rites for his procreator. (9-142)
One who had been given away to another had no share in the property of his father or grandfather. Similarly, the son of a woman by her patron and brother-in-law was not eligible to a share in the property of her husband if she had a natural son by the latter. This son by the brother-in-law would lose his share in the property of his procreator also. So also the son by unauthorized niyoga with the brother-in-law had no claim in the property of her husband as well as in that of the brother-of the latter. This was intended to discourage adultery and lust. (9-143)
The issue of how these illegitimate sons are to be maintained is not debated here. Debates on this issue are diversionary and tend to cause loss to the legitimate sons. Adulteresses were cast out of the family and the clan along with the children born of adultery. They had no right to perform sraddha rites for their natural fathers or for the husbands of their mothers. They might be given subsistence allowance on humanitarian grounds but could not demand this even.
The male child of an authorized woman, if not begotten in the prescribed manner, is not entitled to the paternal property; as, he is procreated by outcasts.(9-144) The wife or widow was authorized to beget a male heir for her husband by a particular brother of the latter and by following a certain code of conduct that precluded her longing for sex while having intercourse with him. If these were violated both that woman and the person with whom she copulated would be banished as fallen (patita) from standards prescribed. The son born to her would not be eligible to inherit the property of her husband.
The son born of the authorized woman (the wife or widow by her brother-in-law) or of the appointed daughter (by her fiance) shall inherit, like the natural son (aurasa), the property of the sonless father. For, he was the owner of the soil (kshetrika) where the seed (bijam) was sown and the offspring belonged to him. [The Vayu dictum mentioned earlier is enforced for this claim.] It may be noted that the appointed daughter was not yet married and that to provide her father with a kshetraja son was the condition put before she was married to her fiance. She was sent away with him only after she bore a son for her father and left it behind. (9-145)
The brother who protects the wife (stri) and wealth of his dead brother was required to beget a child for that brother and give his own wealth to that son. The kshetraja son of the deceased brother is equivalent to a son given away in adoption honourably with wealth endowed on him. (9-146) This rule took away the stain of resorting to the animal practice of breeding offspring on ones cows by the bull of another.
The brother-in-law had to protect the widow of his brother but could not give her monetary assistance lest it should smack of resort to prostitution. Hence he would make an endowment in the childs name. If the conditions were not fulfilled and if the wife or widow bore a son by her brother-in-law and patron or by another person, that son would be declared as born of lust (kama) and declared ineligible to inherit the property of the deceased. (9-147)
This rule was applicable also when the daughter was not appointed to bear a child for her father and had sex with one who was not yet married to her and was hence an outsider. That child would be treated as born of unauthorized premarital relation even as that of the unauthorized wife or widow as born of extra-marital relation. Children born of pre-marital or extra-marital relations were declared illegitimate. The claims on behalf of such unrecognized offspring would not stand.The above rules are applicable to partition of property among sons born of the same mother. Partition among sons born of different wives and different communities is described next. (9-148)
Varnas of wives in polygamy
and the shares of their sons
If a Brahman had four wives of four different social classes, varnas, the rule to be followed while partitioning his property among his sons (9-149) was as follows: The ploughman (keenasha), the breeding bull (govrsha), the vehicle for transport (yanam), the distinguishing ornament (alankaram) and the residential house (veshma) were to be assigned to the son of the Brahmana wife as the preferential share and one principal share. The rest of the property excluding the preferential shares would be divided proportionately among the four sons as the principal shares." (9-150) Since the Brahman was not to be engaged in physical labour he needed the services of the ploughman. The ornament signified his superiority among the four sons.
The principal (pradhana) share is mentioned in the next verse (9-151). The sons of the Brahmana, the Kshatriya, the Vaisya and the Shudra wives got the shares in the proportion (6:4:3:2). It needs to be noted that very few Brahmans would have had wives from all the four varnas. Though the shares assigned were not uniform, the son of the Shudra wife was not left high and dry. Equality was absent but not humanity. Often the son of the Brahman wife could not be assigned any preferential share. In such cases the four sons were to receive the shares in the entire estate in the proportion, 4:3:2:1. (9-152,153)
Later Smrtis had their reservations on these recommendations and many of them were more partial to Brahmans than this version of the Manusmrti. Most of the verses that present such discriminatory practices were considerably later additions to the original code and were intended to ensure that the respect that the Brahmans had was not eroded. Brahmans like the rest of the society were expected to adhere to monogamy and intra-community marriages and were not given permission to resort to polygamy or to exploit the women of the lower social ranks and sections.
The debates on the discrimination practised against other classes are in fact quixotic and tilting lances at imaginary windmills. The eagerness of some modern commentators to divert attention from the discrimination introduced by these provisions is more ridiculous than these clauses that could not be implemented and are irrational. Brahmans were not agriculturists and when they were bestowed lands they had to depend on the workers to get them tilled. Some of these Brahmans got married to their maidservants and procreated children on them. They might not have had offspring by their Brahman wives. The offspring by such Shudra wives had to be provided for.
The verse (9-154) calls for giving them one-tenth of the estate of their deceased Brahman fathers. The rest would be taken by their offspring by Brahman wives or by the sons of their brothers. The issue of the offspring by the Kshatriya or Vaisya wives of these Brahmansneed not be discussed in this context. As there was objection to the marriages with women of other varnasand especially with those of the Shudra varna, the Brahmans had to concede the demand that though the sons of their Brahman or Kshatriya or Vaisya wives might insist on partitioning the parental estate among themselves, the sons of the Shudra wife or mistress should not be given any portion of the land.
Most bigamous or polygamous alliances were within the same social class, varna. In these cases, the son of the eldest wife (that is, the wife who was the first to marry that husband) got the preferential share and the rest of the property was to be divided equally among all the sons. (9-156)
It may be noted here that the proportion 4:3:2:1 was applicable whether the husband was a Brahman or not. This placed a premium on the prohibited pratiloma marriage with the son of a Brahman wife of a Vaisya landlord getting twice what his savarna wife got. The verses in this section were obviously interpolated to give Brahmans an undue advantage bypassing all rules to the contrary.
Some claimed that as both anuloma and pratiloma marriages were to be avoided, if a husband to whichever class (varna) he might belong married a woman of his own class at any stage, his son by her would be entitled to the entire property and the sons by other wives would be debarred. This step must have been taken by communities to ensure that the property assigned to them did not pass into the hands of members of other communities that did not hesitate to allow their women to marry men of other communities or classes.
Greed for wealth dictated introduction of new rules and distortion of the existing ones. Neither the new rules nor the old ones deserve to be honoured unless they are proved to be rational and just. The Shudras who were mainly workers or servants were not permitted to marry women of higher varnas. If they had more than one wife and sons by all of them, all these sons got equal shares. (9-157) In fact, the Shudra had no landed property at all.
TWELVE KINDS OF SONS
(9-158 to 184)
Six Dayadas and Six Non-dayadas
Among the twelve kinds of sons mentioned by Manu Svayambhuva (the first Manu) six are kinsmen (kinsmen) as well as heirs (dayadas) and six are kinsmen but not heirs. (9-158)
The body-born (aurasa), the soil-born (kshetraja), the adopted (datta), the appointed (krtrima), the secretly-born (gudotpanna) and the rejected (apaviddha) sons are heirs as well as kinsmen. (9-159)
The maiden-born (kanina), the son received along with the wife (sahodha), the bought (kreeta), the son begotten on a remarried woman (paunarbhava), the self-offered (svayam-datta) and the shudra-born (shaudra) sons are only kinsmen and not heirs. (9-160)
The editors of Manusmrti do not approve any type other than the natural son (aurasa) as helping one to cross the darkness (tamas) that he faces at the time of his death. Only the natural son can be a suputra, a good son. All others are bad sons (kuputra). The man who tries to cross the gloom with the help of bad sons obtains results similar to those obtained by one who tries to cross the water with the help of bad boats. (9-161)
In other words, one may obtain redemption from his debts to his ancestors (rnamukti) only through his natural son. The later editors held that only the eldest son by the wife of the same social class (varna) and community (jati) who was brought up in accordance with the traditions of his clan (kula) could be the real and befitting successor to his father. Some claimed that kuputra referred only to illegitimate sons.
If the soil-born (kshetraja) and the body-born (aurasa) are both entitled to inherit a property held in common by their progenitors, each would get that share that their respective father was entitled to and not the other. (9-162)
The kshetraja was born to one begotten on his wife by his brother-in-law. The aurasa was the son of this brother-in-law begotten on his own wife. The kshetraja who was required to perform the sraddhaThe aurasa would get that of his natural father and would not have claim to any portion of that of the impotent father. rites for that impotent brother would inherit that persons share in the joint property and not that of his natural father.
It is implied that the property is not to be held as common after the demise of either of the two brothers for whom these sons were born.This verse does not envisage a situation where the impotent father becomes potent after the birth of the kshetraja son and procreates a natural son (aurasa). All suggestions contrary to this interpretation are crude attempts at defeating the intent behind permitting niyoga and recognizing kshetraja sons.
But later editors would not honour this intent and demanded that the property should not be partitioned if any of the brothers who held it jointly had sons or heirs who were not their natural sons (aurasa). It was a situation when varna distinctions among wives had not come into play and hence all the natural sons belonged to the community or class of their respective fathers. Savarna marriages reified this belongingness. (9-163)
Only the aurasa, the son born to one by an approved marriage and by personal copulation with that wife was the controller (prabhu) of the paternal estate. [The term, prabhu, does not imply ownership. This title was given to the widely accepted leader of the society.]
In order to avoid the charge of unkindness or inhumanity, he was advised to provide for the subsistence of other (types of) sons. He would not have violated the provisions of the code if he had retracted on the decisions taken by his father and denied every one else except the natural sons a share in the property of his father. In case the property was held jointly by all the brothers, the eldest among the natural sons or the one elected by the natural sons (of these brothers) would have presided over that property as prabhu and issued directions about how to use it.
This prabhu was asked to assign one fifth of the property to the kshetraja son (to the son born to his mother by niyoga). The rest would be distributed among the natural sons (aurasas). (9-164)
A husband was expected to direct his wife to resort to niyoga and beget a kshetraja son only if he was proved to be impotent. Hence it has to be interpreted that the senior among the natural sons (aurasas) who administered the joint property after the death of all their fathers (who were brothers and had not partitioned it among themselves) would assign one fifth of the undivided property to kshetrajas before partitioning it among these aurasas.
The structure and composition of the fraternal oligarchy need to be presented correctly. No interpretation of the conflicts among the different sons and dayadas in rich and powerful families can be held to be valid if it has not taken into account the intricacies of this social orientation that has its roots in the social structure of ancient India which was brought under the four-varnas system during the last decades of the long Vedic era.
The aurasa and the kshetraja were eligible to inherit the property of the father for whom they were born. The other ten would inherit the gotra title and the special rights if any(in administration of public rites and exercise of statutory civic rights) going along with that title. They did not get share in the personal property of its deceased owner.
While assigning these rights the seniority of the different types of sons has to be honoured as specified in verse 159. (The order of seniority is aurasa, kshetraja, datta, krtrima, gudotpanna and apaviddha.) The six types (kanina, sahodha, kreeta, paunarbhava, svayam-datta and shaudra) mentioned in verse 160 were not heirs and could not claim to be members of that gotra. (9-165)
Only if there was no aurasa or kshetraja, the other four types could step in and that too not for a share in the property but for other social purposes. This right too was not given to the six types mentioned in verse 160. The aurasa or the kshetraja might help them out of humanitarian considerations. The verse 165 goes counter to the intents of the scheme of twelve types as originally envisaged. It introduces the concept of gotra in place of dayada and is a later interpolation.
The aurasa son is one procreated by one through personal intercourse with his own wife. The soil or field belongs to him. The editors declare that it be known that the aurasa was given precedence over other kinds of sons. (9-166)
There is no mention of the community (jati) or class (varna) of the wife or of the husband in this verse. It is improper to raise the issue of varna while determining the legitimacy of the son born to one by his own wife and by his act of procreation. After marriage, the wife belonged to the clan, community and class of her husband irrespective of what they were at her paternal home. The son acquired the traits, gene and class of his procreator.
As he was procreated by his mother's husband, there could be no doubt about the class or varna of the aurasa son. Other arguments, which commentators have advanced with respect to this verse are irrelevant and are to be neglected. [Many of these arguments seem to have been made to support the attempt by the East India Company of Britain to take over the states of the native princes of India.]
If a son is born of the wife of a man, either dead or impotent or diseased, by one who has been appointed in accordance to that mans rights and duties (code of svadharma), that son is treated by the smrtis as a kshetraja. (9-167) The person appointing that wife and the man who would procreate on her must be empowered to so appoint them and must justify that appointment as necessary to fulfill the duties of that man. It was not left to the wishes of that wife or to the procreator.
It is implicit that even her husbands wish and directive were not adequate to authorize niyoga. It was to be a collective decision where every one concerned had to be consulted and give consent. Unless the implications of pursuit of svadharma were met such procreation could be held as illegal. When in times of distress, the mother or the father affectionately gives away with water-libations a worthy son, that son is called given (and adopted). (9-168)
Some have argued that the son should be given away jointly by its father and mother. Some others have argued that the child belonged to the father and that the mother had no right to give it away. Often the distress was because the child had lost its mother and the father could not attend to its needs.
There were occasions when a separated or widowed mother did not have the wherewithal to bring it up. The son adopted should have been formally given away by at least one of the two parents. It should have been born to respectable (though distraught) parents. It was not an orphan whose parents were not known. The sonless father could not adopt an orphan or a child born to an adulteress. The term, worthy does not imply that the adopted son should have been born in the same community or class as that of the person who adopted him. The datta son must have been given away in its own interests (affectionately) and without greed. It should not have been sold away. The term, sadrsam would imply that the adopted son should resemble its new father.
When one appoints a son who is worthy, capable of discerning right and wrong, and is endowed with filial virtues (putraguna), that son is to be known as appointed (krtrima). The consent of the parents is not required here. There is no formal donating of the child.It is however not a vagrant child devoid of training in morality unable to discriminate correctly between good and bad. The child might have been an orphan or taken away from its parents with or without their consent. Here too the child is expected to resemble the new father or mother.
The child is expected to be loyal to its patron and godfather. Such a child could have developed these qualities when it had reached the age of adolescence. An adult too could be appointed as a son who would ably continue the tradition of his new father. (9-169)
[The study of dynasties and lineages has to take into account the fact that most of the successors were not the natural sons of their fathers and were only the nominees of the latter.] The appointed heir was not much different from the adopted son as far as his social status was concerned. But he was mature and of proven loyalty when he was selected for fulfilling the duties of his new father. Yet as he had been nurtured in a different home and traditions different from those of the new home he could not be placed on par with the adopted son.
If a son was born in a mans house and it was not known whose he was, that son who was secretly born (guda utpanna) was treated as belonging to him of whose wife he was born. (9-170) Many homes did not place premium on marital chastity but they were protected from peeping eyes. Even the husbands were not sure who among the brothers had procreated on the wife of a particular woman of that family. It was better for the social status of the joint family that every husband accepted as his own, the child given birth to by his wife.
Monogamy was breached too often within the four walls of its house and such breach was tolerated as the offspring had the trait of one born by unauthorized niyoga. As it was unauthorized rather than a violation of morality, the child was to be accepted by the husband and not by the brother who procreated it. The issue of the community or class of the procreator is irrelevant here as the brothers belonged to the same family and hence to the same community and the same varna. The child could not be discarded as belonging to a mixed class, samkaravarna. It would rarely have known who its procreator was. Even its mother could not have been sure who that procreator was, if the family control system was lax.
But not all husbands consented to accept such children as their own. If a husband abandoned it or his wife refused to nurture it and if one of his brothers or a stranger took the responsibility for bringing it up, it was known as apaviddha, an unaborted birth. (9-171) The person who had adopted such a child whose parents had abandoned it (for whatever reason it might be) could not claim it as adopted child (datta) as the procedure of adoption had not been gone through.
The apaviddha child could be provided for by its guardian but not given a share in his inherited property even if it had been born to one of his brothers. Such a son was not entitled to perform the sraddha rites for his godfather. This child was suspected of having been born of adultery. Even the godfather was suspected to be a party to that adultery.
Later Smrtis and medieval annotators have not been consistent in their presentation of the strain on monogamy within the fold of an undivided family residing under a single roof. The sound of the scandals could not be shut off from the ears of the neighbourhood. The home had its secrets and these burst forth when the day of partition neared.
If an unmarried girl (kanya) secretly bears a son in her fathers house, that son born of a maiden should be known as kanina and would belong to him who married her (afterwards). The editors of Manusmrti do not attach any condition pertaining to the community or class of the girl or of the man who marries her or their economic status. It was the duty of the father to protect his daughter and give her away in marriage before she attained the age of consent. He had obviously failed to discharge his duty and the girl had indulged in sex with an unauthorized person and conceived that child. Her father then undertook to bring it up but not as that of his appointed daughter. As she married she demanded that her fiance consented to bring up that child of hers as his. (9-172)
This child by pre-marital marriage was perhaps his. But neither his own brothers nor the neighbourhood was prepared to grant that child the status of a legitimate child and allow it a share in the ancestral property. Yet he was constrained to assign it a share in his personal property lest he should lose his wife. Pre-marital sex was not rare. Children born of such pre-marital sex were to be provided for and were provided for though the sons born within the fold of marriage resented making such provision for these children.
Some parents passed off their pregnant girls as virgins.This deception brought those girls and the children in their wombs only trouble. The grooms were not always unaware that the girls they were marrying were pregnant. In either case, as the child was delivered only after marriage it was distinguished from the kanina. It was called sahodha and given a status lower than that of the kanina. In both cases, the girl might have conceived either by sex with her fiance or with another man. (9-173)
Medhatithi has not explained this and subsequent verses. These types of sons must have been treated as not deserving any share in the ancestral property of the husbands of the errant women. They were not eligible to be called putra, one who could rightfully perform the last rites for his father. If a man buys a boy from the parents of that boy with a view to making him his, that successor (suta) was called kreetaka and the act of purchase was struck down as illegal. It was banned even if the child resembled him, that is, even if he or one of his brothers had procreated it. It was banned even if the payment was made to honour its parents. It amounted to buying a slave. (9-174)
Monogamy with sexual intercourse within the fold of marriage was the norm that the Manusmrti instituted. A child born to either of the partners outside this recognized marriage was an aberration. Since polygamy was not banned wives who were found infertile could be superseded. But as polyandry was banned wives who found their husbands impotent could not divorce them and marry other potent men. They could at best resort to the provisions of niyoga and beget children by their brothers-in-law. Separation from husbands and remarriage by women or by widows were not rare. If such a remarried woman bore a son that son was called the son of a remarried woman, paunarbhava. (9-175)
If a girl had not gone through consummation of marriage and remarried on her husbands death or on that marriage being retracted with the conditions of marriage not fulfilled by either the girls parents or by those of the groom, the remarriage could take place. Similarly after the first marriage was formally annulled, if she still remained a virgin, the marriage could be gone through again. This clause might have been introduced later to bring the broken marriage back on rails. It appears that the puritans of the recent times have preferred to overlook this permission.Paunarbhava could not have covered the offspring by such remarriages, which were in fact, completion of the first marriage. (9-176) But some later Smrtis were not rational or liberal.
If a boy, deprived of his parents, or being abandoned by them without cause, offered himself to a man, the Smrtis called him a svayam-datta. (9-177)
There were doubts about his intentions. The dayadas would not allow this intruder to walk away with their property. The next verse is a considerably later interpolation reflecting social decadence and insecurity among the Brahmans who controlled the implementation of the social codes. If a Brahmana, through lust, begets a son on a Shudra woman, he is a corpse, even though living, and hence called the living corpse (parasava). (9-178) In the samkaravarna scheme, this offspring was called a Nishada and was not totally discarded. Nishadas were kept at a distance and were deprived of a share in the family property. They were required to stay away from the village and were denied access to its agro-pastoral economy. The fishermen and boatmen were called Nishadas.
The discussion on the twelve types of sons was not restricted to the Brahmans. In fact, it was not based on the varna system.The twelfth type, shaudra, pertained to cadres that were lower in status than the Shudra agricultural workers who had no fixed assets. The Shudras were free members of the society and were not theoretically debarred from owning property and exercising civic and civil rights.
But they came in contact with the serfs, dasas, who did not have these rights. A dasi had to yield to the advances of her employer. Some dasas had as wives such dasis serving them and meeting the sex demands of their employers.If a Shudra procreated offspring on such a dasi, with the permission of her employer, the offspring might take a share in his property, the socio-cultural code (dharma) had instituted. That offspring would not belong to the employer who was from the higher varnas.A shaudra offspring so born was no longer deemed to be a dasa, serf.
The Brahman might have produced an offspring on a Shudra woman who was a maidservant and not a helpless dasi. While, the Brahmans, the Kshatriyas and the Vaisyas were not permitted to sexually exploit the wives of the serfs (the dasas), the Shudras were permitted to have sexual relations with the latter. Their offspring could become free and could not be exploited thereafter. (9-179) These aspects of social dynamics are not to be lost sight of. The medieval and later commentators are seen to be unduly particular about the relevance of this clause to the cases where the members of the higher varnas exploited the services of their dasis for sex and had offspring by them. Such offspring could be given only subsistence allowance, the other offspring argued..
The dasas were serfs under the nobles and other members of the ruling elite. Some of them rubbed shoulders with the nobles and were known as Devadasas and were almost free citizens and equal to Vaisyas or Aryas. The freed Dasas or serfs were known as Sudasas and their offspring were termed as Saudasas. The Shaudras on the other hand ranked lower than the Shudras who were considerably superior to Dasas. They were liberated serfs.
The soil-born (kshetraja) and others of the eleven types of sons (excluding the natural son, aurasa) who were made heirs were described by the wise as substitute sons so that the funeral and other rites might be performed without failure. (9-180) [It would however be wrong to describe them as equivalent to the aurasa. The order in which these eleven are enumerated is not followed by all codes but the one followed by Manusmrti seems to have been more common.]
The next verse (9-181) states that in this section those sons born of the seed of strangers has been described and that they belong to him from whose seed they are born and not to any other person. This statement is obviously a later retraction from the stand taken by the earlier editors of Manusmrti. It denies the kanina, the sahodha, the kreeta, the paunarbhava, the svayam-datta and the shaudra any right to perform the last rites to any one except their procreators.
They could not adopt the gotra of the person to whom they were socially and economically attached. It is not to be interpreted that this ban is applicable to the other five sons, the kshetraja, the datta, the krtrima, the gudautpanna and the apaviddha who are given the status of dayadas.
The later editors decrying the practice of niyoga, remarriage, adoption etc. commend the view of Svayambhuva that among brothers, born of the same father, even if one has a son, all of them are deemed to be with son, through that son. (9-182) This only son was entitled to perform the last rites for all these brothers and inherit the property of all of them.
Svayambhuva seems to have held that the seeds of all the brothers are alike and hence impotency of any of them need not be cited to resort to any of these non-normative methods to beget or adopt a successor to the exclusion of this son. Manu is said to have declared that Among all the wives of one man, if one has a son, all of them may be deemed to be with son through that son. (9-183)
But rare were the cases where this counsel was heeded if any Manu indeed gave such a counsel. This verse is an unauthorized interpolation. Citing the authority of Manu was an attempt to hush objection to irrational stands. The later editors suggest that on the failure of each superior kind of son, each next inferior one is entitled to inheritance; if there are several of the same class, all shall share the property. (9-184) Shares were assigned but the property was held jointly. This could have only disturbed the peace of the joint family severely. Establishment of small nuclear families was better than this conglomeration.
INHERITANCE OF PROPERTY
(9-185 to 219)
The dayada system of oligarchy was a culmination of the Vedic practice of close-knit group acting in unison to protect its interests against aggression by external groups and erosion by delinquent individuals within. These were not merely common interests of its members but were sovereign rights that could be exercised only as a group and with might that could not be beaten back. Clans and communities and later, nation-states, claimed and exercised these rights and powers to ensure conformity by their members and citizens.
A joint family was a miniature rather than a minuscule oligarchic entity. Its decisions were collective ones rather than ones dictated by their patriarchs. Even its newborn members had their rights, which were voiced and exercised through their guardians and parents. It was a confederation of a number of nuclear families, old and new. It has later come to be known as joint family or extended family. The clan was a socio-political association of such families vested with appellate powers. Manusmrti did not annul the rights of any family, nuclear or joint, or of any clan but tried to help them to exercise those rights in a wholesome manner. Socio-political constitutions are to be evaluated on the basis of the level of rationality attained by them while meeting this requirement. Rationalism is against dogmatism.
Every individual has the duty to continue to discharge his debts to his society; the most immediate and visible structure of it is his clan, kula. His debts are to the nobles, sages and ancestors who have left behind a cultural legacy that he is expected to cherish and strengthen. His clan and community will censure the man who repudiates this heritage in the name of individualism. Individualism has a positive note too. It consists in the permission granted to choose among the various social options available while falling in line with others on certain imperatives both with respect to prescribed conduct and prohibited actions, niyamas and yamas. Repudiation of the entire past and revolt against the entire society are signs of insanity and these are liable to be curbed with an iron hand by the clan and in its absence by the state.
The legacy left behind by the ancestors is not only cultural but also economic. It has a genetic tone that is disquieting and often disputed and rightly so. Manusmrti did not swear by this genetic tone and adopted a holistic liberalism while outlining the procedure to be followed in allotting shares in the ancestral property to different types of sons.
It was drafted first when the old Vedic recommendation based on dayada, fraternal oligarchy was crumbling and the coercive powers of the clan, kula had lost their grip with the emergence of the nation-state. The sages who drafted the Manusmrti felt that only the nuclear family based on monogamy would survive in the long runand that it required the safety cushion of a joint family to absorb the shocks that the individual in the nuclear family or its head could not. The amendments introduced by later Smrtis and interpolations effected in Manusmrti from time to time by later annotators were attempts to wipe out the pains caused by the shocks felt by the society during their respective times.
All ranks of the early post-Vedic society were agreed on the importance of the patrimonial inheritance (genetic and as an irrational corollary, rights of inheritance to property, professions, privileges and power) but some had reservations on the maternal inheritance. The later Vedic society had developed systems that were not in tune with either of these and they too had to be provided for. The nuclear families established on the demise of both the father and the mother, were viable only if they were economical in using their limited resources. They could rarely be strong in physical and human resources. They could not enlarge and convert themselves into clans or become the ruling sections of clans.
These were the consequences of the collapse of feudalism and the emergence of new nation-states that thrived on loyalty of the individual to his community rather than on subordination of the individual to the clan. These nuclear families with strong internal ties undid the dayada fraternal oligarchy and loosened the hold of the clan. The orientations strenuously built by the clan began to give way to pursuit of new goals.
The clans (kulas) carped on the past and so did the dayadas but the new nuclear families were concerned with their present needs and future prospects. The former stood by the legitimacy of the traditional practices and the latter was for rational legitimacy. The rules of inheritance had to meet the conditions of rational legitimacy stipulated by Manusmrti. These rules have been amended from time to time but not always wisely. [Not all the rules for which the commentary of Medhatithi is not available are to be assumed as later interpolations,]
The property in the possession of an individual was partitioned among his sons on the demise of that individual and also of his wife. Monogamy was the norm instituted by the editors of Manusmrti. If the two had no sons they could adopt the son of their daughter though he belonged to another gotra or a son of one of the brothers of the husband. Compared to these two practices, the eleven alternatives considered by Manusmrti fade into the realm of disputed alliances and questionable purposes and unethical means. Often there was none to inherit the property and they went by default into the hands of undesirable persons who were greedy. Or the lands lay uncultivated and the houses unoccupied.
The brothers could have taken charge of them but the rules of inheritance had annulled fraternal oligarchy and made fraternity itself suspect. Sons alone shall inherit the fathers property and not his brothers, it was pronounced. The fathers could not aspire to take over the property of their sons and deny their grandchildren their rights. But if a son died without heirs, his property could be taken over by the father. This was intended to keep away the father-in-law and brothers-in-law of that son from annexing his property.
The wife of a person was a guardian of their children but a sonless widow could not control the property of her deceased husband. Since his brothers could not take them over and so too his in-laws, his father was empowered to take it. It was the property personally acquired by that son and was not patrimonial property. The latter could be partitioned only after the death of the father and the mother. The verse (9-185) permits the brothers too to step in with their claims. They could do so only if that father was dead. They could acquire the property of their sonless brother on his death.
According to the scheme of reversion, the son who offers libation to his forefathers, his father, grandfather and the father of the latter are the only four generations to be taken into account and not any previous ones. Dayadas are those who fall within these four generations as brothers and paternal cousins. These brothers were eligible to offer pindas (rice-balls) and be offered these on their death. Their seniority could be determined easily. If there were no such dayadas, a member of a clan, kula, on par with theirs had the right to take over the property of the deceased sonless person. If the latter was a student, his teacher too could take charge of it and if a teacher, his student could take charge of it. These recommendations took into account the situation when there was no recognized local administration or a central state. (9-186,187)
If none of the above, approved claimants was present or alive, the Brahmans could inherit it. This provision has attracted severe criticism. The socio-cultural constitution, dharma, would not be violated by the Brahmans stepping in to take possession of the unclaimed property. (9-188)
The Brahmans mentioned here were not priests or teachers but were members of the judiciary and custodians of the socio-political constitution. The Brahmans are not to be equated with the ecclesiastic authority that the clergy and the church were in medieval Europe. The Brahmans (jurists) who took charge of the property that no individual could claim were versed in the three sciences (traividya), the Vedas, varta and dandaniti that covered socio-cultural history, economics and political science respectively. Mastery over the three Vedas was not adequate to be appointed to the bar or to the bench.
The socio-political constitution (Brahma) was superior to the socio-cultural constitution (dharma) except in matters pertaining to ethics. [The Atharvaveda that enshrined the socio-political constitution of the Vedicperiod was known as Brahma. The ideologues and activists who implemented its provisions were known as Brahmavadis. These were to be adhered to by the Dharmasastras and Arthasastras. The jurists, Brahmavadis, could strike down the provisions of thesesastras, codes,if they violated those of Brahma. Brahma covered all the four Vedas and referred to the Atharvaveda in particular.] The authority of the judiciary to take charge of what did not belong to others could not be set aside by any king. These custodians were in charge of public property and were trustees.
This property known as the wealth of the Brahmans (who were as jurists, trustees) could not be taken over by the king (raja). This was the settled rule. But in the case of other classes, varnas, in the case of absence of all types of heirs, the chief of the free men (nrpa) could take over the unclaimed property. In these cases too, the local administrator (nrpa) who was not a member of any clan or community took over the property declared intestate and not the king (raja) who claimed sovereign power. (9-189)
One who dies sonless is placed on par with one who has parted company with his family and clan and has no property other than what he had personally earned after such separation. It is not sound to treat nrpa as identical with raja. The property of free individuals (naras, nrs) could not be inherited by any one. They lived alone and were not recognized as eligible to set up homes and families. In other words, while a free man (nara) or a free woman (nari), could live together and have sex they were not recognized as a married couple. The property passed into the hands of their nominees. If they did not nominate anyone as their heirs, the nrpa, their chieftain took charge of it.
The property of a clan was controlled by its patriarch, prajapati. The private acquired property of a free person, nara or nari, went to his or her nominee. The unassigned property was in the hands of the nrpa, an elected official. The King had his private property and protected the public property and the private property of others. There was little state property. [The King could not supersede the authority of the judiciary and the jurists who controlled trust property. It is unsound to interpret that the King could claim the property of all heirless persons except that of the Brahmans. Such unsound interpretation was made during the 18th and 19th centuries by the translators appointed by the British colonial rulers.]
The commoners were not willing to allow the property of any family to pass into the hands of the nrpas. They would rather raise an issue when there was no natural son, by any member of the gotra of the deceased man without impregnating his widow. The non-kshetraja son would be entitled to the entire property left behind by the deceased. It would not be attached by the court or by the king or by the local official in charge of the free men. (9-190)
Till the successor was born it would be in the charge of the widow. The wife (stri) who was separated from her husband might find two sons born of two different men claiming this property as the one properly nominated by the council. In such cases, each son would take charge of that portion of the property for which his father had nominated him. This clause too was an interpolation effected during the British rule.
It was not necessary that there should be only one sagotra son who would offer the sraddha rites, pinda, to the deceased in token of having succeeded to the property of that man. The gotra council could permit two of its members to part with a son each for this purpose and divide the property between the two. Such a son would not get assets to that extent in the estate of his father. This was a pragmatic measure to prevent unequal distribution of property among the members of the gotra. The question of submitting the widow to niyoga does not arise here.
She is not a nari, one freed from all bonds and social obligations. She is a stri a respectable lady bound to the memory of her husband till her death. She had to fulfill her duties by accepting such nominees as the sons of her deceased husband. (9-191) The interpretations given by medieval and later commentators like Kulluka and Raghavananda have not taken into account these distinctions that were of considerable importance to the late Vedic and early post-Vedic times.
The mother was in charge of the property left behind by her husband. She had her own property too. The latter could not be claimed by any member of the gotra council or by any dayada. Her brothers and sisters too could not claim any share in it. On her death, this property would be divided equally among the sons and daughters born to her irrespective of by whom and when she had conceived them. (9-192) Commentators have noticed that this verse does not exclude the married daughters from a share in the mothers property.
This is not stridana, womans property constituted by the brides parents and brothers and which normally went to her daughters on her death. The maternal property, on the other hand, was what her husband and his parents constituted, as she became eligible as a mother to run the affairs of her household as its additional head. It is likely that this verse was a considerably later addition or refinement of an earlier one that granted the sons the right to inherit the property of their father and the daughters that of their mother. This amendment is tilted in favour of the sons to the disadvantage of the daughters even in elite households.
The next verse (9-193) recommends that something shall be lovingly given to the daughters daughters from the property of their grandmother.Pertinent here is the attempt on the part of the editors of Manusmrti to provide for the daughters a substantial share in the property of their mothers and for that purpose to require their fathers to endow separate property on their wives.
This arrangement was later meddled with to the disadvantage of the daughters. The property endowed on the wives by their husbands might have been liquid assets (dravyam) as well as lands. [Riktham is to be interpreted in a wider sense and not restricted to gold ornaments.] The allegation that the Manusmrti discriminated against women needs to be examined taking into account the times when it was drafted as a progressive legislation and the numerous amendments and distortions it has gone through later. We should not proceed on the assumption that the laws introduced by the British administrators are infallible and are equitable.
When we compare Kautilyan Arthasastra with Manusmrti as it stands now, it becomes obvious that the later 19th century editors of Manusmrti tried to suppress the rights that women had to their own wealth, stridana.
The verse (9-194) includes in stridana, the exclusive wealth of the lady of the house, (1) what is given before agni (the fire, in common parlance) at the time of marriage, (2) what is given to her at the time of her departure (to her marital home), (3) what is given in token of love (preeti) (by her friends and relatives) and (4) what is received from her brother, mother and father.
During the 19th and 20th centuries, Manusmrti was accepted as the basis of Hindu Law and its provisions have been cited in numerous disputes on marriage and inheritance of property. The interpretations given and stands taken by the different benches have not been uniform.
But they have all failed to realize that Agni was the designation of the official of the Vedic social polity who represented the commoners and headed the council of scholars, samiti. [Indra was the designation of the official who headed, the assembly of nobles, sabha.] Agni presided over the peoples court and required that every one present should take oath to speak and abide by truth (satya). It was a period when the social code based on dharma had not yet come into force. When the latter came into force it was insisted that it should not be based on any principle that was contradictory to truth. Marriage was to be solemnized in the presence of this official even as every economic compact had to be. Long after the Vedic polity faded away, the practice and concept of marriage in the presence of fire became the norm.
What was given to the bride in the presence of fire (Agni) at the time of her marriage was a gift and not a payment for any services rendered or to be rendered. It was given to her without conditions and she could use it as she wished. It was however to be ensured that she did not fritter it away nor any one deprived her of it. All the gifts that she received from her friends and relatives including her brothers and parents were merged in the stridana that theoretically included the endowments made in her favour by her father and by her father-in-law. Also the gifts made to her subsequently by her loving husband were merged in this property.
This property was inherited by her offspring (both daughters and sons) if she died while her husband was alive. (9-195) In other words the stridana of a wife could not be taken over by her husband during her lifetime or later. It could not be given to his other wives or taken away by his brothers. It could not be taken away by her parents or by her brothers. It was meant to help her if she was required to head her nuclear family alone. It was meant for her and her offspring.
Brahma, Daiva, Arsha, Prajapatya and Gandharva marriages were valid while Asura, Rakshasa and Paisaca marriages were declared illegal. (Kautilya validated them if both the parents of the bride and both the parents of the groom granted ex post facto approval to Gandharva, Asura, Rakshasa and Paisaca marriages. In the other four types the fathers of the bride and the groom had to grant approval.)
In the five approved marriages, if the wife died childless, her property, stridana was to be taken by her husband. Her parents and brothers could not claim any portion of it though their contribution to it was the most. (9-196)
But in the Asura and other two types of marriage, her property was held to belong to her parents on her dying childless. (9-197) The editors of Manusmrti would not allow the lives of the wives married by purchase or abduction or enticement endangered by the greedy husbands.
Only in Brahma marriage, both the bride and the groom invariably belonged to the same social class, varna. When both belonged to the Brahmanavarna, stridana was treated as property inheritable only by the daughters. If the daughter were dead, her daughter would inherit. Sons and grandsons had no claim to any portion of it. (9-198) The later editors of Manusmrti were able to plead with the Brahmans successfully for protection of the interests of the daughters, especially the unmarried ones and allow the fathers to look after their sons independently.
This separation of jurisdiction could not be effected in clans and communities that were not as highly educated as the Brahmans were. In those communities, exploitation of and discrimination against women was rampant. But even among Brahmans, the father of the girl could insist on the assignment to the daughters only that property given to the wife by her father. What the father-in-law gave to her husband could be assigned only to the sons.
Housewives were asked not to make a hoard out of the family property common to many or out of their own property without the permission of their husbands. (9-199) This was intended to avoid disputes in the joint family.
The ornaments which the women wore when their husbands were alive were not to be worn by her heirs. They would be declared to have fallen in status (patita) if they did so. (9-200) It is not sound to interpret that such heirs would be declared as outcasts. They would be violating the spirit and love with which he had bestowed these ornaments.
The rules of inheritance were intended to protect the interests of the heirs, sons and daughters, and the widows. These were not to be used to their disadvantage. Not all the heirs were capable of using the heirloom wisely. The editors would counsel against assigning shares to those sons and daughters who were eunuchs or were born blind or deaf or dumb or were idiots or were deficient in any organ. Not only the physically or mentally handicapped but also the morally decadent (patita) among these were not eligible to receive any share in the property of their parents. (9-201)
The manishinas, a group of psychologists who stood by humanism, treated it as just and lawful (nyaya) that the physically and socially handicapped among the progeny were all given food and clothing by the person who partitioned the property. If he failed to do so, he would be declared as having fallen (patita) in his duties. (9-202) It is immoral and inhuman to deprive these morally or physically or mentally handicapped of subsistence allowance to meet their minimum needs.
These handicapped persons were not fit to have progeny, for such progeny would only perpetuate these defects, it was feared. Should they be allowed to marry? The manishinas seem to have treated this fear to be unwarranted. If a handicapped person wanted to marry, he should be allowed to do so. The progeny of such a person would be entitled to possess and use the wealth, which was kept back from that handicapped father or mother. (9-203)
Later editors many of whom have been uncharitable to the handicapped have criticized this recommendation. They would rather see the instincts thwarted as undesirable lust of the impotent and the lunatic. Manusmrti did not share this inhumanity. It was not against the eunuchs. It was not their fault that they were born eunuchs or impotent. Discrimination against them was to be only in their own interests and not wanton or motivated by malevolence. What is the fundamental right of a human being? The right to perform rites (dharma) was not an evolute of or a corollary to the right to own property (artha). The right to sex (kama) was not an evolute of either of these.
Many fathers passed away even when their younger sons were at school, leaving them to the care of their elder brothers. The father might have before his demise handed over his property to the eldest son and this was to be apportioned among the brothers. The eldest brother was not expected to deny the younger brothers their shares on the ground that he had got them educated. They were to be paid the shares due to them.(204) Some have interpreted that he had to give them a share from the property he had personally earned. This too might have been implied.
Manusmrti recommended a generous and liberal approach.The editors of Manusmrti were more eager to ensure that the weak and helpless were not exploited by the shrewd and dishonest. But not all families that had property belonged to the educated classes. If all the brothers are uneducated and the property was acquired by their personal physical labour whether as young boys or as adults, the property should be apportioned equally. This rule pertained to the working class that was eligible to formation of property through savings but not through application of specialized knowledge (vidya).
In the case of the learned, that is, in the case of the higher classes, talent varied from brother to brother and brothers could not all be treated on par while partitioning the acquired property. Ancestral property had to be divided equally but acquired property need not be, these classes argued.This argument was conceded partly but it was required that the eldest brother as the guardian in the absence of the father should get his younger brothers educated and also give some share from his own earnings to launch them on their course in life. But in the case of the commoners, who had no inherited property worth mention, the property acquired through collective work should be divided equally. This was fair and just. (9-205)
The later editors of Manusmrti were afraid that the rulers might discard the basic distinction between the educated communities and the uneducated communities, between dvijatis and ekajatis, and apply the above formula to both. They stipulated that wealth acquired through application of specialized knowledge (vidya) belonged to the man who had acquired it by that knowledge and training. Brothers could not claim a share in the presents received by one from his friends or at his marriage or for performance of noble acts and presence at auspicious events. These presents were not part of ancestral property or were acquired property and were personal receipts. So too the benefits accruing from knowledge are treated as ones personal gains and as not liable to be shared with others. (9-206)
If a brother was found to be exceptionally competent to acquire wealth through his own profession (svakarma), he need not be given any share by the eldest brother who was empowered to apportion the inherited property and his own acquired property at the time of partition among brothers. He might be given a little for his maintenance.
Share in the property was needed to fall back on in emergency and as a launching pad. As that brother was able to stand on his own legs and was not dependent on the vocation followed by his family, the share due to him would be more useful if given to others. Wealth was not to be so divided as to increase inequality. (9-207)
It may be noticed that in this analysis there is no reference to distinctions based on community and class. Not every rule incorporated in the Manusmrti is to be related to the scheme of four classes, chaturvarna. Many of these rules were in force even when the society had not yet been organized on the basis of this scheme.
If one of the brothers who had received a share in the patrimony does not use that share while acquiring wealth by his own effort, he need not share this acquired wealth with his other brothers. If he so desires he may part with some of it to his brothers. Patrimony may be used to acquire further wealth. But such acquisition is liable to be treated as accretion to patrimony and as liable to be apportioned but not personal acquisitions. (9-208) Even the sons were not eligible to demand a share in the earned property of their father. This aberration is a later interpolation in the rules of partition framed by Manusmrti.
If the father recovers a lost ancestral property, he shall not, unless he so wishes, share it with his sons, as it is his self-acquired property. (Jha) (9-209) Burnell translates this verse as: If a father acquires any wealth of which (although) belonging to the paternal estate, one had not (before) got possession, he need not divide this with his sons unless he chooses, (as it was) acquired by himself (alone).
This verse reflects a society where property had torn the family into shreds with brother at the throat of his brother and the son at that of his father. A lot has been written on the property of the Hindu Undivided family based on this verse that has vitiated the families.Buhler notes: Medhatithi, whose commentary on this verse is very corrupt, seems to have inferred from it that Manu admitted the equality of ownership of a father and his sons in the ancestral property. But he combats the theory that sons may without a violation of their duties force the father to divide the ancestral property.
Many have raised the issue whether a father could partition his property among his sons when he was yet alive. The circumstances when he could and did partition it must have been extraordinary.His wives must have predeceased him and he must have fulfilled his duties by all his sons and daughters before he donned the robes of an ascetic and left the home. He was permitted and required to treat the lost ancestral property as one in which his brothers had equal claims as he had though it was he who had discovered it.
Discovery is not creation. Property is either inherited or created. He might recover a property from those who held it unlawfully and his brothers might not have assisted him in effecting such recovery, nor his sons. In such a situation, he would be justified in claiming that it was equal to self-acquired property. Such self-acquired property was not covered by the rules of inheritance. He was free to assign it in his lifetime to any one. In other words, he was not required to divide it equally or even equitably among his sons and might give it partly or fully to any one for any purpose.
Only if such assignment was not made, the sons could divide it including the recovered ancestral property among themselves. At that stage his brothers had no claim to any portion of that ancestral property.
It has to be remarked here that the stand taken by Jha, The sons who force the partition on their father incur a sin Even though the property thus shared with the unwilling father is the hereditary property of the sons, it is open to censure. For this reason, so long as they have any other means, the sons should never ask their father for a partition; as such asking would be immoral, is not convincing.
The issue here is the claim to the recovered ancestral property. The person who recovered it would dispose it of, as he liked. If he did not do so in his lifetime, his sons would share it equally. As far as partition of the ancestral property is concerned, it could not be done as long as its administrator, karta, was alive. That administrator would be failing in his duty if he did not ensure that it was kept intact as long as he lived. He was not free to free himself from this duty.
The administrator, karta, of the joint property arranged for the first partition of the ancestral property including the unassigned personally earned property of the father after the death of the surviving mother. The eldest of the sons as the administrator could take one share more than what others took. The patrimonial property was to be divided equally among the brothers. The property of the mother was divided equally among the sons and daughters. Even after the notional partition the brothers might agree to stay and work together and amass further wealth. The shares of the property left behind might have been used up in this process or increased. If they for any reason go in for a second partition among the brothers, the property then available would be shared equally by all the brothers. In this case there is no application of the law of primogeniture. (9-210)
Only as the eldest son, one could claim to have a greater responsibility and hence precedence over the other sons and not as the eldest of the brothers. Brothers held the property jointly with equal rights and equal responsibilities. This fraternal oligarchy was the essence of the dayada system. The eldest son was the karta, the administrator of the property left behind by the father. This was the essential law of primogeniture.The traditional joint family tried to fuse the two and was a fuming volcano.
The eldest of the brothers or the youngest of the brothers might walk out protesting such retraction on decision to work together or decision not to go in for a second partition. And the others may thereupon deprive him of his shares. Similar forfeiture might take place when either dies. Such denial or forfeiture was invalid.(9-211)
Big brother approach could not but lead to resentment among other brothers. The joint family was an experiment that could succeed only to a certain level of acquisition of wealth. Beyond that it split. It was better to split soon after the demise of the brothers than after struggling to live and strive together.
Collapse of the joint family is not to be rued as but a recent phenomenon. The joint family was an ideal that could succeed only when there was no personal property and no inherited property. It floundered as it stepped on property.
When the second partition became inevitable, the uterine brothers who expelled the authoritarian eldest (or the dissident youngest) brother came together to divide the property amongst themselves. It implies that the joint family could not stay united, as the brothers were not all born of the same mother. Their attempt to reside under one roof and work together was short-lived.If it was a normative family that abided by the rules of monogamy, on the exit or expulsion of the eldest or the youngest brother, those brothers who had worked together on the ancestral property and enriched it could effect the second partition. At this stage, these brothers and their unmarried sisters would get equal shares. (9-212)
The father and the mother had to arrange for the marriage of their daughters. But if some of the daughters had not been married and sent to their marital homes with the endowments due to them, the responsibility for getting them duly married fell on the eldest son as the karta, administrator. Though the share of each brother in the property of his father might have been determined on the basis of equality after giving the eldest son a preferential share in lieu of his additional duties, the brothers had opted to stay and work together.
But as the eldest brother walked out or died without carrying out his duties or was expelled for not carrying them out, the responsibility to get these sisters married fell on the shoulders of the other brothers. They had to give these unmarried shares on par with what they got at this second partition and enable them to get married to grooms of their own choice.
The debates indulged in by other Smrtis and medieval and modern commentators on this verse are off the mark. Partition was intended to place every nuclear family on its own legs. This intent was foiled by the unfulfilled duties of the parents. The sons as united brothers had to get these fulfilled. But they had their duties to their respective nuclear families. This situation often made a second partition inevitable.
Monogamous nuclear families with the mother as the second head and trustee of the family property were the norm. Such families were not always brought into existence immediately after the demise of the father and the mother for they often could not get all their sons and daughters married in their own lifetime. Though nominal partition might have been pronounced soon after the death of both the father and the mother, the uneasy working together continued for a while until it broke and a second partition had to take place. Survival of the joint family has always been ephemeral though the concept of a huge joint family was not necessarily a chimera.
An elder brother could never play the role of his father successfully. It was better to part without disgruntlement than to be forced to work together. If the eldest brother through avarice (lobha) defrauded the younger ones, he lost his seniority (jyeshta) and his special share in honour of this seniority. Since there was none in the family who was senior to him he could be punished by the king. Obviously only the state could mete out justice to the exploited and discipline individual citizens.
Society that comprised several clans and communities did not hand over civil authority to the political authority until private property and the concept of inheritance of property were sanctified. As these were sanctified, the state was appealed to, to settle disputes within the family. Partition of large estates and emergence of small families though economically not viable kept the state away from the contented individuals. The state had to protect the weak from the greedy and the mighty. The state would reprimand the guilty elder brother. Commentators granted it power to impose fine on him. (9-213)
But the state was not always there or everywhere to come to the rescue of the defrauded. The local community and the clan itself had to be strengthened to censure the guilty brothers and ensure that the joint family stayed together. The brothers who were addicted to evil deeds were unworthy of any share in the inherited property. The eldest brother should not have separate wealth without contributing anything to his younger brothers. (9-214)
The elder brother had special duties and the powers needed to fulfill them. He was not expected to treat even his personally earned wealth as his alone and refrain from helping his younger brothers who looked up to him for protection in the absence of their parents. The joint family is not an economic corporation with every member pursuing his own interests devoid of love and affection for its other members.
Later editors of Manusmrti appear to have recommended partition of the assets even while the parents were alive. But not in every case the brothers were willing for such partition. They might desire to flourish together. If so, the father should not impose partition on them. (9-215)
Not only the ancestral property inherited and developed by the father but also the property acquired by him anew is to be partitioned among the sons. In other words, he could not leave behind any will indicating how his property should be apportioned after his death. The sons had the right to decide whether they should and could work together and this right should not be set at naught by the fathers views on how they would conduct themselves in his absence.
The later Smrtis are seen to have adopted contradictory stands on the right of the father to express his views or leave behind a will. The father might have under pressure or in haste effected the partition or executed the will before his last son was born. In such a case, this son was declared to be ineligible to any share in the ancestral property inherited by the father. He could claim a share only in the acquired property of the father. This rule is a later interpolation loaded with mischief and malicious intent. It adds, If any other sons are reunited, he would share it with them. (9-216)
The context seems to be a partition of the family and its effective separation and dispersal with little hope of reunion during the lifetime of the father. If they happened to come back to their native land, the son born during their absence would have to share with them what his father had left for him exclusively. This was brazen exploitation of the young son. It is not to be legitimized but seems to have been validated by drawing attention to a similar provision in other smrtis. These smrtis too must have been meddled with and the principled stand taken by the earlier editors of Manusmrti negated thereby.
As both the father and the mother passed away, their sons, especially the married ones established separate nuclear families. They drew upon their shares in the ancestral property and in the acquired wealth of their father. The eldest son was responsible for the education and marriage of his unmarried sisters and his younger brothers who were minors. Of course the other brothers might contribute their mite for this purpose. He was assigned an additional share in the parental property for discharging this duty. But a nuclear family did not come into socio-legal existence until it had two children born to its heads. (Vide my earlier work, Foundations of Hindu Economic State for an examination of Kautilyas stand on this aspect.)
If one was not the father of at least one son, he was not eligible to handle the ancestral property falling to his share. If he or the unmarried son died childless, that persons property would revert to the mother (the widow of his father). If the mother too was dead, the grandmother (fathers mother) would take charge of it. (9-217)
The other brothers had no claim over it. Of course, the ideal normative nuclear family did not follow niyoga and did not try to have a son other than the natural son. The mother, the second head of the family of the deceased father, would be in charge of the property of the ineligible son until her death. On her death, her sons and daughters would share it equally.
If the grandmother took over, then too, a similar division would take place. The intent was prevention of any share of the ancestral property passing into the hands of outsiders. Sonlessness or childlessness did not lead to lapse (the notorious argument advanced by the British rulers to dispossess many of the ruling lineages of India of their territories). This rule (217) that is not unreasonable might have been declared an unauthorized interpolation in Manusmrti in order to justify the notorious policy of lapse. The policy of lapse was used by the British imperialists to annex many Indian states.
The partition of the inherited and acquired property of the father was effected after the death of the father and the mother. Some more property might be discovered after this partition. It had to be divided equally among the brothers. It is implied that the eldest son would not get an additional share in such discovered property.(9-218)
Certain items were not to be included in the property to be partitioned. These are enumerated as clothes (used by the parents), vehicle, ornaments, cooked food, drinking water, and women. The term, women (stri) here indicated that the partition-deed should not mention which son was entitled to take away his mother or grandmother or sister along with him to his house. This term is not to be construed as referring to female slaves or servant maids of the family.
Similarly the savings kept apart for emergency and security of the economic operations (yogakshema) that family was engaged in are to be kept intact and not partitioned. So too the open lands reserved for pasture and spread (pracharam) of mainly agro-pastoral economic operations were not to be partitioned. They were to be made available to all the brothers who were living in the same village but in separate houses. (9-219)
It needs to be remarked here that it is irrational to introduce the concepts of ethics and sin in any discussion on the issue of division of property. The editors of Manusmrti were rational and pragmatic in their approach and did not use threat of banishing from the society one who did not follow their instructions. They were only recommending what in their view was then the best way to protect the interests of every son and daughter.